1This matter was assigned to me pursuant to Standing Order No. 1 of theHonorable James Knoll Gardner.

IN THE UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF PENNSYLVANIA

___________________________________:

UNIVERSAL DELAWARE, INC., et al., : CIVIL ACTIONon behalf of themselves and all :others similarly situated, :

:Plaintiffs, :

:v. : No. 07-1078

:COMDATA CORPORATION, et al., :

:Defendants. :

___________________________________:

HENRY S. PERKIN,UNITED STATES MAGISTRATE JUDGE

MEMORANDUM

The instant discovery issue before the Court is

Plaintiffs’ motion to compel non-party Ceridian Corporation

(“Ceridian”) to produce documents pursuant to Federal Rule of

Civil Procedure 45 (Dkt. No. 90).1 Following extensive briefing

and telephonic conferences placed on the record, Plaintiffs’

motion is GRANTED.

I. PROCEDURAL HISTORY.

Plaintiffs filed their consolidated Amended Complaint

on May 1, 2007. Ceridian was initially named as a party to this

case based solely on alter-ego and agency theory. On June 22,

2007, Ceridian filed a motion to dismiss the Complaint as to

Ceridian. Plaintiffs agreed to voluntarily dismiss Ceridian from

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the case without prejudice to Plaintiffs’ right to amend and

rename Ceridian as a defendant and toll the statute of

limitations. On October 18, 2007, the parties executed and

submitted a Stipulation and Order dismissing Ceridian without

prejudice to Plaintiffs’ right to amend and rename Ceridian as a

Defendant and toll the statute of limitations. The Honorable

James Knoll Gardner, the presiding District Court Judge, approved

the stipulation on December 18, 2007. The stipulation included

the following: Ceridian agreed to preserve documents and other

materials relevant to this litigation to the same extent as if

Ceridian were still a party to the litigation; to respond in good

faith to reasonable requests for third party discovery related to

this case, and in addition, not interpose objections to discovery

requests (as a non-party) for the purpose of delaying production

of documents or witnesses past the deadline for amending the

complaint contained in the operative scheduling order; that

service of subpoenas on Ceridian’s counsel in Philadelphia

constituted service of process on Ceridian and/or any of its

current employees under applicable rules and law; and that

Ceridian will submit to the jurisdiction of this Court in the

Eastern District of Pennsylvania for resolution of discovery

disputes relating to subpoenas that Plaintiffs serve upon

Ceridian or Ceridian employees.

On February 20, 2008, the amended stipulated protective

3

order governing the use and handling of documents, electronic

information in any form, testimony, interrogatory responses and

other information in pre-trial proceedings in this litigation was

approved.

On December 23, 2008, Plaintiffs filed a Motion to

Compel Third Party, Ceridian Corporation, to Comply with Subpoena

and Produce Responsive Electronically Stored Information (“ESI”).

Because no Response to the Motion was filed on or before January

6, 2009, this Court granted the Motion to Compel as unopposed on

January 16, 2009. The Order was docketed at 4:30 p.m. That same

day at 6:00 p.m., Ceridian filed the Response in Opposition to

the Motion to Compel. On January 26, 2009, Plaintiffs filed a

Reply to the Response to the Motion to Compel.

On January 30, 2009, this Court vacated the January 16,

2009 Order granting the Motion to Compel as unopposed because

counsel failed to advise the Court that Plaintiffs’ counsel

agreed to an extension until January 16, 2009 for Ceridian to

respond to Plaintiffs’ Motion. Plaintiffs filed their Reply

Memorandum of Law on January 26, 2009. On February 17, 2009,

Ceridian was ordered to submit, on or before Friday, February 20,

2009, a detailed summary of its incurred and anticipated costs to

comply with the subpoena divided into paper discovery and

electronic discovery. On February 20, 2009, Ceridian filed its

Statement of Estimate and Summary of Incurred and Anticipated

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Discovery Related Costs. On February 23, 2009, Plaintiffs were

ordered to submit, on or before March 9, 2009, a Response Brief

to Ceridian’s Cost Estimate and Summary. On March 2, 2009,

Plaintiffs filed a Response in Support of the Motion to Compel.

On March 10, 2009, Ceridian filed a Reply to the Response.

On April 17, 209, Ceridian’s counsel submitted a letter

to Chambers. Plaintiffs’ counsel submitted a letter in response

on April 21, 2009, to which Ceridian’s counsel replied in

correspondence dated April 23, 2009.

On April 27, 2009, a telephone conference was held

regarding Plaintiffs’ Motion to Compel Ceridian to Comply with

the Subpoena and Produce Responsive ESI, Ceridian’s issue with an

$8000 cost per month to maintain a database, and whether Ceridian

could obtain a complete, unredacted version of Plaintiffs’

proposed Second Amended Complaint. The telephone conference was

continued on May 1, 2009.

By Order dated January 14, 2009 and by agreement of

counsel, Plaintiffs had until April 6, 2009 to file a motion to

amend the consolidated Amended Complaint to add claims, theories,

or new parties. On April 6, 2009, Plaintiffs filed a motion for

leave to amend the consolidated Amended Complaint which would add

the TA group of Defendants and Ceridian as Defendants.

On May 21, 2009, Plaintiffs initiated Civil Action 09-

cv-2327 by filing a Class Action Complaint against Ceridian, the

5

TA group of Defendants, Petro Stopping Centers, L.P., Pilot

Travel Centers, LLC, Pilot Corporation and Love’s Travel Stops &

Country Stores. On April 23, 2009 and May 4, 2009, the TA group

of Defendants and Ceridian, respectively, sought to intervene in

the 2007 action for the limited purpose of opposing Plaintiffs’

motion to amend.

Judge Gardner entered a number of orders on March 24,

2010, including: (1) consolidating Civil Action No. 09-cv-2327

into Civil Action No. 07-cv-1078 and dismissing from the 09-2327

case without prejudice the pending Motions to Dismiss of

Ceridian, TA, Love’s Travel Stops & Country Stores, Inc., and

Pilot Travel Centers LLC and Pilot Corporation; (2) denying the

motions to intervene of Ceridian and TA for the limited purpose

of opposing Plaintiffs’ Motion to Amend; and (3) granting

Plaintiffs leave to file a Second Consolidated Amended Complaint

on or before April 7, 2010, encompassing all claims and

defendants in the 2009 case.

A. Plaintiff’s Motion to Compel.

1. Plaintiffs’ Motion.

Plaintiffs move for entry of an order compelling third-

party Ceridian to comply with a subpoena duces tecum by producing

responsive electronically stored information (“ESI”) from the

back-up tapes of five custodians and active databases of 21

custodians, without requiring Plaintiffs to compensate Ceridian

2The five custodians include John “Jack” Eickhoff, Loren “Buzz” Gross,Ron Turner, Gary Nelson and Craig Manson.

6

for any fees it pays its own attorneys to review such discovery

materials. Plaintiffs request that the Court compel Ceridian to

fulfill its requirements as outlined in the Joint Stipulation and

Proposed Order Dismissing Ceridian without prejudice to

Plaintiffs’ right to amend and rename Ceridian as a Defendant and

Tolling the Statute of Limitation. Plaintiffs contend that after

Ceridian initially agreed to provide ESI on a rolling basis and

to complete production by August 8, 2008, Ceridian began imposing

an increasing number of onerous conditions on producing any ESI.

Months of negotiations ensued during which Plaintiffs made a

series of concessions, including agreeing to limit Ceridian’s

search to the following sources for responsive ESI: (1) a

database maintained by Kroll Ontrack, Ceridian’s electronic

discovery vendor, that consists of previously processed back-up

tapes for five custodians;2 and (2) the Company’s “active” or

“live” databases to twenty-one custodians. Plaintiffs further

agreed that Ceridian may search these databases for responsive

ESI using seventeen search terms, and to pay all costs associated

with providing .tiff images of documents returned from the search

of the specified back-up tapes, provided that Kroll Ontrack

properly substantiates these costs. Ceridian did not produce any

ESI responsive to Plaintiffs’ subpoena. Instead, Ceridian

insisted that Plaintiffs agree to reimburse Ceridian for one-half

7

of any amount above $10,000 that Ceridian pays its own attorneys

to review responsive ESI for privileged materials before Ceridian

would begin the production.

Plaintiffs contend that the Subpoena seeks relevant

information and is not unduly burdensome. Plaintiffs also

contend that Ceridian should not be reimbursed for its review

costs. If Ceridian is to be considered a third-party to this

litigation, Plaintiffs contend that, despite Ceridian’s express

obligation under the Stipulation to Dismiss to exercise “good

faith” in producing discovery and refrain from engaging in

delaying tactics, Ceridian is still responsible for bearing the

costs of its own review pursuant to Brown v. City of Maize,

Kansas, No. 07-1178, 2008 WL 754742, at *4 (D. Kan. Mar. 18,

2008).

2. Ceridian’s Response.

Ceridian opposes the Motion to Compel on the basis that

Plaintiffs place only one issue before the Court for decision,

whether Plaintiffs may impose on non-party Ceridian the financial

burden of a broad electronic review without contribution from

Plaintiffs for the cost of review and production. According to

Ceridian, Federal Rule of Civil Procedure 45, relevant case law

and discovery treatises state that non-parties are entitled to be

compensated for all aspects of expenses associated with

responding to a subpoena.

8

3. Plaintiff’s Reply.

Plaintiffs contend, in reply, that contrary to

Ceridian’s claims, courts routinely reject third parties’

requests for reimbursement for their review and inspection costs

where the non-party has an “interest in the outcome” of the

litigation. Pls.’ Reply, p. 2 (citing In re Subpoena to Bank TD

N.A., No. 8-101-P-S, 2008 U.S. Dist. LEXIS 99888, at *12-13 (D.

Maine Dec. 1, 2008)(denying nonparty TD Bank’S request to be

reimbursed for $10,871 in attorney fees since it was “not an

innocent third-party,” but rather was a nonparty with “an

interest in the outcome of the case”); In re Seroquel Products

Liability Litig., No. 6:06-md-1769-Orl-22DAB, 2007 U.S. Dist.

LEXIS 89903, at *8-11 (M.D. Fla. Dec. 6, 2007)(denying nonparty’s

request for $28,950 in attorney fees because nonparty

doctor/consultant was “not a ‘classic disinterested non-party’”);

JP Morgan Chase Bank v. Winnick, No. 03 Civ. 8535 (GEL), 2006 WL

3164241, at *2 (S.D.N.Y. Nov. 2, 2006)(denying nonparty Toronto

Dominion’s request for attorney fees because “while [nonparty]

Toronto Dominion will not benefit directly from any recovery, the

claim of fraud advanced by plaintiff in this case is the sort of

litigation that will benefit institutional lenders like Toronto

Dominion”); FTC v. U.S. Grant Resources, LLC, Case No. 04-596,

2004 U.S. Dist. LEXIS 11389, at *12-13 (E.D. La. June 18,

2004)(denying nonparty Louisiana Attorney General’s Office’s

9

request for review and inspection costs because it was an

interested party in the FTC’s litigation which was prosecuting a

“parallel criminal matter”); In re Honeywell International, Inc.

Sec. Litig., 230 F.R.D. 293, 302-303 (S.D.N.Y. Nov. 18, 2003)

(denying nonparty PWC’s request for reimbursement of production,

inspection and review costs since it was not a “classic

disinterested nonparty”).

Here, Plaintiffs contend that Ceridian cannot dispute

that it is an interested party to this litigation and has an

interest in the lawsuit’s outcome because Defendant Comdata is

Ceridian’s wholly-owned subsidiary. Moreover, unlike the parties

in the cited cases, Ceridian was a former Defendant in this

litigation and was dismissed on the condition that it fulfill its

discovery obligations “to the same extent as if Ceridian were

still a party to the litigation.” Plaintiffs also note that

Ceridian agreed to unconditionally produce all responsive ESI by

a date certain and only until Ceridian “reneged” on its

previously agreed-upon production arrangements that it sought to

be reimbursed for review costs. Pls.’ Reply, p. 4.

Plaintiffs also note that Ceridian does not cite any

cases similar to the instant case where the non-parties had an

interest in the related litigation or were former parties who

were voluntarily dismissed on the condition that they fulfill

certain discovery obligations. Plaintiffs distinguish cases

10

cited by Ceridian on other grounds, including that the non-

parties did not seek reimbursement of attorneys’ fees, the non-

parties were producing discovery pursuant to a subpoena issued

from a court in a foreign jurisdiction, the movant party had

entered into a formal memorandum of understanding agreeing to

reimburse the non-party for expenses and fees incurred in

producing responsive discovery, the non-parties incurred millions

of dollars in out-of-pocket costs in complying with discovery

demands, and the non-parties were asked to produce documents

previously prepared for prior litigations, thereby raising

attorney-client and work-product issues. Pls.’ Reply Mem., p. 5.

Plaintiffs argue that Ceridian adopts a myopic view of

the Stipulation it signed when it was voluntarily dismissed from

this case in an effort to “wiggle out” of its previously agreed-

upon production arrangements. Plaintiffs point to the period of

time between March and late July 2008 when Ceridian agreed

unconditionally to produce all responsive ESI on a rolling basis

and complete production by August 8, 2008, only on July 21, 2008

Ceridian raised the prospect of sharing costs for processing the

ESI. On August 5, 2008, three days before the production date,

Ceridian first raised the issue of Plaintiffs’ compensating

Ceridian for attorney-review costs. Pls.’ Reply Mem., p. 6.

Plaintiffs note that Ceridian did not present any evidence or

supporting documentation to support its claim that it incurred

11

$100,000 to comply with Plaintiffs’ subpoena. Id.

B. Estimated Costs and Progress Toward A Resolution.

This Court ordered Ceridian to provide an estimate of

the costs involved in producing the requested ESI in this case.

As of January, 2009, the claimed costs were $101,891.40, with the

anticipated projected costs ranging from $705,390 to $990,719.60.

Plaintiffs responded to these estimates by stating that the

incurred expenses were “wildly excessive” and the anticipated

costs were “grossly inflated.”

Ceridian filed a Reply to Plaintiffs’ Response, stating

that Ceridian reviewed over 13 GB of data, and the ratio of the

time and high cost of review to the extremely low yield of

relevant materials caused Ceridian to seek limitations on the

scope of the search and a cost-sharing agreement. In addition,

Ceridian contended that Kroll Ontrack, their third-party vendor,

should determine the number of documents from the back-up tapes

requiring review.

Plaintiffs first objected to Ceridian’s Reply because

Ceridian did not seek leave from the Court to Reply. However, in

an effort to move the litigation along, Plaintiffs agreed

initially to limit Ceridian’s discovery production obligations to

producing ESI from the back-up tapes of the five identified

custodians. To the extent that information is recovered from the

back-up tapes that provides a reasonable belief that additional

12

relevant information may be in the data of the active databases

of the twenty-one custodians, Plaintiffs contend that they may

request additional searches on those twenty-one databases.

Plaintiffs contend that Ceridian remains obligated to pay for all

review costs as supported by the Joint Stipulation that expressly

mandates that Ceridian should fulfill its discovery production

requirements to the same extent as if Ceridian were still a party

to this litigation.

Ceridian notes that backup data stored on the database

of Kroll Ontrack, its outside vendor, incurs a monthly fee of

$8597.92 per month. The database was originally created for an

unrelated matter which is resolved, and except for this

litigation, the database would be destroyed. The processing cost

of information contained on this database potentially relevant to

Plaintiffs’ production requests is $4,085. Ceridian contends

that Plaintiffs previously agreed in an email to pay the $4,085

processing cost, and now Plaintiffs refuse to honor this

agreement therefore Ceridian seeks an order requiring Plaintiffs

to pay the $4,085 processing cost or, in the alternative, an

order relieving Ceridian of any obligation to maintain the

database.

Plaintiffs contend that they have offered to pay $4,085

for processing certain documents, which is the amount Ceridian

represented it would cost to produce .tiff images for documents

13

from five Ceridian custodians, John Eickenhoff, Loren Gross, Ron

Turner, Gary Nelson and Craig Manson. Plaintiffs contend that

after they confirmed their willingness to pay the $4,085 and

Ceridian began processing the documents, counsel for Ceridian

sent Plaintiffs an invoice/paperwork from Kroll Ontrack which was

a proposed contract with Kroll Ontrack consisting of a detailed

statement of work and Kroll’s pricing structure for discovery-

related tasks. Plaintiffs refused to sign the invoice because it

did not specifically set forth the amount that Plaintiffs were

obligated to pay, and it sought to impose improper, far-reaching

obligations on Plaintiffs.

Ceridian responded that it does not intend to destroy

any of its ESI documents including those on the database at

issue, but it would be expensive and time-consuming for any

information currently on that database to be retrieved in any

usable format other than from that database. Ceridian maintains

that, as a non-party, they are under no obligation to maintain

the database at $8000 per month, there is no business reason for

maintaining the database, and taking down the database does not

destroy the documents, it makes their retrieval more costly and

burdensome. Ceridian maintains that Plaintiffs should bear the

monthly cost of the database if it is to their benefit to

facilitate further inquiries. Moreover, Ceridian notes that

Plaintiffs filed a motion to amend their Complaint to add

14

Ceridian as a Defendant, which is an improper maneuver to shift

the costs for responding to Plaintiffs’ discovery requests.

II. DISCUSSION.

Judge Gardner’s recent decisions regarding the pending

motions now allow this Court to render decision on the pending

motion to compel.

During an April 27, 2009 telephone conference with

counsel for the Plaintiffs and Ceridian, the parties agreed to

investigate other avenues of storage and copying of the subject

Ceridian database. During a May 1, 2009 telephone conference,

Plaintiffs’ counsel stated that, following the April 27, 2009

telephone conference, Plaintiffs do not perceive that they will

obtain any additional ESI information if they pay $4085 to Kroll

Ontrack to create a separate database and then after Ceridian

reviews it for privilege, Plaintiffs will still have no documents

because Plaintiffs will be required to pay for the review of the

documents and .08¢ per page. Ceridian’s counsel stated that the

anticipated costs depend on the number of documents resulting

from .tiffing the database and running the search terms and then

Ceridian returns to the Court with the estimated costs of review.

Mr. Joel Bothof, an electronic evidence consultant of

Kroll Ontrack in Eden Prairie, Minnesota, was joined onto the

conference call for a short period of time on May 1, 2009.

According to Mr. Bothof, copying the .tiffed Ceridian database

15

into a second database is the least expensive option to provide a

searchable database for this case and keep the prior Ceridian

litigation matter intact because the existing database from prior

litigation also contains work product attached to the documents.

The present format of the documents on the existing Ceridian

database is native, .tiffed, searchable text and proprietary.

According to Mr. Bothof, when the database is .tiffed, the

metadata is not scrubbed.

Mr. Bothof reported that the cost for document

production depends on the number of documents produced through

searching with agreed-upon search terms. The monthly hosting fee

for a new database created from copying the existing database

into a new database is $854 per month on a per page rate. When

asked the estimated cost if every document on the existing

database comes up with search terms, Mr. Bothof stated that the

least expensive way to produce those documents would be to .tiff

them to a third database, which would incur costs of .08¢ per

page for a total of $17,334 plus shipping pass-through costs. It

is estimated that it will take less than 10 days .tiff the

database and run the search terms.

The 2006 Amendments to Federal Rule of Civil Procedure

45 note that Rule 45(c)(1) directs that a party serving a

subpoena “shall take reasonable steps to avoid imposing undue

burden or expense on a person subject to the subpoena” and Rule

3 The parties previously agreed to excise Ceridian’s general counselfrom the custodians.

16

45(c)(2)(B) permits the person served with the subpoena to object

to it and directs that an order requiring compliance “shall

protect a person who is neither a party not a party’s officer

from significant expense resulting from” compliance. In this

case, Ceridian is currently a non-party, although Judge Gardner

has given Plaintiffs leave until April 7, 2010 to amend their

consolidated Second Amended Complaint. Due to Plaintiffs’ filing

the 2009 case against Ceridian, it is likely that Plaintiffs will

amend their Complaint to include Ceridian as a Defendant.

Nonetheless, Ceridian is currently a non-party in this action and

thus, is entitled to protection against undue impositions. Both

Plaintiffs and Ceridian have been cooperative in working with

each other and this Court in attempting to reach a compromise on

this issue.

It appears to this Court that the most efficient way of

accomplishing compliance with Plaintiffs’ ESI subpoena can be

accomplished by Kroll Ontrack’s creation of a separate database

comprised of the .tiffed images of documents from back-up tapes

of Ceridian’s four custodians.3 Ceridian has satisfied its

burden of showing that the requested discovery is not reasonably

accessible and the information requested is on marginally

accessible media, the back-up tapes. Pursuant to Plaintiffs’

prior agreement, Plaintiffs shall pay $4,085 to Kroll Ontrack as

17

an initial start-up fee, but Ceridian shall execute any paperwork

required by Kroll Ontrack for this processing because the

database shall be created from Ceridian’s existing database, and

it is created pursuant to Ceridian’s duty to comply with the

Plaintiffs’ subpoena.

Some cost-shifting is appropriate in this case pursuant

to Zubulake v. UBS Warburg LLC, 217 F.R.D. 309 (S.D.N.Y. 2003),

because the data at issue in this case is kept in an inaccessible

format, i.e., back-up tapes, some of the costs involved in

producing this data will be shared by Plaintiffs and Ceridian.

There is a seven-factor test for determining whether the costs

should shift: (1) the extent to which the request is specifically

tailored to discover the relevant information; (2) the

availability of such information from other sources; (3) the

total cost of production, compared to the amount in controversy;

(4) the total cost of production, compared to the resources

available to each party; (5) the relative ability of each party

to control costs and its incentive to do so; (6) the importance

of the issues at stake in the litigation; and (7) the relative

benefits to the parties of obtaining the information. Id. at

322.

Both the Plaintiffs and Ceridian have worked to narrow

the focus of the search of the four back-up tapes to use search

terms that may lead to the discovery of relevant information.

18

Such information is unavailable from other sources, and both

Plaintiffs and Ceridian have a high incentive to control the

costs of this litigation, particularly Ceridian because it is not

currently a party to the litigation. Obtaining the information

sought may be helpful to the ultimate resolution of this case.

The Plaintiffs have filed ancillary actions around the country in

attempts to obtain information from other sources that may be

contained within Ceridian’s data. Obtaining this information may

help the Plaintiffs in their pursuit of this antitrust action,

and it may be helpful to Ceridian to defend its interests,

depending on whether Plaintiffs re-plead Ceridian as a Defendant

in this suit.

Accordingly, Ceridian shall direct Kroll Ontrack to

create a separate database comprised of the .tiffed images of

documents from the four custodians, and Plaintiffs and Ceridian

are each 50% responsible for the cost to create the separate

database, estimated by Mr. Joel Bothof of Kroll Ontrack to be

approximately $17,334 + shipping pass-through costs. Both

Plaintiffs and Ceridian shall each pay their respective fifty

percent share of the fee for the database creation directly to

Kroll Ontrack. Ceridian shall have Kroll Ontrack execute a

search of the new database using previously agreed-upon search

terms, and counsel for Ceridian shall conduct a privilege review

of the documents resulting from Kroll Ontrack’s database search.

1

Ceridian shall bear the costs of this privilege review of its own

documents. Thereafter, Ceridian shall produce to Plaintiffs the

responsive documents and a detailed privilege log for any

documents withheld on the basis of privilege.

The creation of the database, searching and document

review and production shall take place over the next sixty days,

and the Court will schedule a conference with counsel for

Plaintiffs and Ceridian at the expiration of that sixty day

period to ascertain the status of discovery.

An appropriate Order follows.

2

IN THE UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF PENNSYLVANIA

___________________________________:

UNIVERSAL DELAWARE, INC., et al., : CIVIL ACTIONon behalf of themselves and all :others similarly situated, :

Plaintiffs, ::

v. : No. 07-1078:

COMDATA CORPORATION, et al., :Defendants. :

___________________________________:

ORDER

AND NOW, this 31st day of March, 2010, upon

consideration of the Plaintiffs’ Motion to Compel Third Party,

Ceridian Corporation (“Ceridian”), to Comply With Subpoena and

Produce Responsive Electronically Stored Information

(“ESI”)(Docket No. 90), Ceridian’s Response to the Motion (Dkt.

No. 98), Plaintiffs’ Reply Memorandum of Law (Dkt. No. 106),

Ceridian’s Estimate and Summary of Incurred and Anticipated

Discovery-Related Expenses (Dkt. No. 111), and Plaintiffs’ Reply

Brief in Further Support of their Motion to Compel and in

Response to Ceridian’s Submitted Cost Summary (Dkt. No. 114), and

for the reasons set forth in the accompanying Memorandum,

IT IS ORDERED that Plaintiffs’ Motion is GRANTED.

IT IS FURTHER ORDERED that Plaintiffs and Ceridian

shall accomplish the following actions within sixty (60) days

4 The parties previously agreed to excise Ceridian’s general counselfrom the custodians.

3

following this Order:

1. Plaintiffs shall pay $4,085 to Kroll Ontrack for

processing the .tiff images from back-up tapes of Ceridian’s four

custodians.4 Ceridian shall execute any paperwork required by

Kroll Ontrack for this processing;

2. Ceridian shall direct Kroll Ontrack to create a

separate database comprised of the .tiffed images of documents

from the four custodians;

3. Plaintiffs and Ceridian are each 50% responsible

for the cost to create the separate database, estimated by Mr.

Joel Bothof of Kroll Ontrack to be approximately $17,334 +

shipping pass-through costs, and payment shall be made directly

to Kroll Ontrack for this database;

4. Kroll Ontrack shall execute a search of the new

database using previously agreed-upon search terms, and ;

5. Counsel for Ceridian shall conduct a privilege

review of the documents resulting from Kroll Ontrack’s database

search, and Ceridian shall solely bear the costs of this

privilege review;

6. Ceridian shall produce to Plaintiffs the

responsive documents and a detailed privilege log for any

documents withheld on the basis of privilege.

4

IT IS FURTHER ORDERED that counsel for Plaintiffs and

Ceridian shall provide a status report to the Court of their

progress in accomplishing this first step of document production

sixty (60) days following this Order.

BY THE COURT:

/s/ Henry S. PerkinHENRY S. PERKINUNITED STATES MAGISTRATE JUDGE